The Leighton Park Trust v. Huynh Fai

DCMP 1610 of 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1610 OF 2006

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BETWEEN

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Coram:   Deputy Judge Abu B. bin Wahab in Chambers (open to public)

Date of Hearing:   15 February 2007

Date of Handing Down Judgment:   21 February 2007

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JUDGMENT

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1.On 17 January 2005 summary judgment was entered against the Defendant (and his wife). In execution of that judgment, the Plaintiff obtained an Order from Master Lai (“the Order”) on 12 January 2007 for sale of property registered in the name of the Defendant.

2.The Defendant appealed to me against the Order. On the 29 January, I dismissed the appeal with costs. Reasons for my decision were later reduced into writing and handed down to the parties.

3.Pursuant to Order 58 of the Rules of the District Court, the Defendant applied for leave to appeal to the Court of Appeal against my decision. On 15 February 2007 I dismissed the application with costs to the Plaintiff, to be taxed if not agreed.

4.I now state the reasons for my decision.

5.The grounds relied on by the Defendant can be summarised as follows:

a)    He borrowed some $500,000 from his father-in-law to finance purchase of the property. The father-in-law remains his creditor;

b)    Despite repeated requests, the Plaintiff failed to provide proper accounts to show amounts outstanding from him (and his wife). The Defendant went on to query the basis for saying that he is liable for any outstanding amount and

c)    The reserved price of not less than HK$500,000 for sale of the property is too low.

6.Ground a) is simply not relevant. The father-in-law can take such steps as he sees fit to enforce the debt (if it was really a debt) against the Defendant. Whatever the father-in-law may do is not reason to set aside the Order.

7.Ground b) is yet again an attempt to attack the summary judgment of 17 January 2005. As explained in my reasons for dismissing the appeal against the Order, that summary judgment stands and I will not entertain complaints against it.

8.Regarding Ground c), the relevant part of the Order reads:

“ (3)  the Property be sold by public auction or private treaty in open market subject to a reserved price of not less than HK$1,279,700 (including the premium payable to the Hong Kong Housing Authority) or in the Tenant Purchase Scheme secondary market subject to a reserved price of not less than HK$500,000.” (This part of the Order will be referred to hereinafter as “Paragraph 3”.)

9.The Defendant does not object to the figure of HK$1,279,700. He only takes issue with the figure of HK$500,000.

10.It is clear that Paragraph 3 was based on the recommendation of Messrs. Knight Frank Petty, a reputable business concern with considerable experience in real property matters including property valuation, management and disposal (see Hearing Bundle page 109 to 119 and page 166 to 167).

11.I do not accept Ground c) is made out simply by the Defendant saying that he considers the reserve price too low.

12.I end by following up on a matter raised by the Defendant on the last occasion viz. that he had already made certain payments to the Plaintiff. The latest 6^th affidavit of Mr. Mark Alexander Pierrpont clarifies and confirms that th ose payments addressed prior outstanding amounts not relevant to the present case.

Representation:

Mr. Richard L. Baker of Messrs Victor Chu & Co. for the Plaintiff

Mr. Huynh Fai, Defendant, in person